Objection regarding jurisdiction of Executing Court not raised by judgment debtor.

C. Nagappan, J.

1. This appeal is preferred against the judgment of the learned Principal Subordinate Judge, Salem, passed in O.S.No. 613 of 1986 on 5.9.1988. The defendant is the appellant herein.

2. Theaverments in the plaint are summarised as follows.

The suit property originally belonged to Venkatarama Chettiar, the grand-father of the plaintiff, who sold it to T.R. Sundaram, who in turn sold the same to M.R. Radha for valuable consideration on 2.4.1962. M.R. Radha, who was acting in a number of Tamil films, purchased the property from and out of his own earning. M.R. Radha conveyed the property to his son Minor Ravi by means of a registered deed of gift on 15.6.1962. Subsequently, Ravi sold the suit property to Rangaiah Chettiar for Rs. 40,000 by registered sale deed, dated 9.2.1972. After the purchase, Rangaiah Chettiar was enjoying the suit property and he had no male issue. His wife Padmalochani had left him and living separately. They had a daughter Hamsaveni, who is a lunatic.

Rangaiah Chettiar executed a Will on 14.1.1980, which was registered on 19.1.1980, bequeathing the suit property and other properties in favour of the plaintiff with father as his guardian. Rangiah chettiar has also adopted the plaintiff as his son by a registered deed, dated 30.1.1980. Rangaiah Chettiar died on 28.12.1982 at Salem. The patta for the suit property has been changed in the name of the plaintiff and plaintiff is paying taxes to the Government and he is in possession of the suit property and his father, as his next friend, managing the same.

The defendant filed a suit in C.S.No. 104 of 1966 in the original side of the High Court to recover a sum of Rs. 27,290.84 being the sale price of textile goods supplied to M.R. Radha between 5.10.1964 and 21.1.1966 at Madras. The High Court passed a personal decree against M.R. Radha and a decree against the assets of joint family properties in the hands of Minor Ravi for the suit claim. The High Court in the judgment, while vacating the attachment ordered before judgment, held specifically that the Executing Court shall decide as to whether the suit property was a joint family property or not and that matter was left open for the defendant to take appropriate proceedings. Long prior to the debit incurred by M.R. Radha, he had executed a gift settlement deed in favour of his then minor son Ravi, who later sold the property to Rangiah Chettiar in the year 1972. The defendant filed an Execution Petition, on the decree obtained by him, in the Court of District Munsif at Salem in R.E.P.No. 744 of 1970 and during the pendency of execution petition, Rangaiah Chettiar died and the defendant did not choose to bring the plaintiff on record. The second wife of Rangiah Chettiar, namely, Padmalochani, and their lunatic daughter Hamsaveni were added as the legal representations of Rangaiah Chettiar on their application in R.E.A. No. 504 of 1983 on 28.7.1983. Earlier, a claim application filed by Rangaiah Chettiar and Ravi in R.E.A. No. 2929 of 1970 for raising the attachment made over the suit property in execution on the ground that the judgment-debtor M.R. Radha was not the owner of the suit property was enquired into by the District Munsif and was dismissed on 10.11.1986. Consequently, the Executing Court ordered Sale of the suit property on 8.1.1987 fixing the upset price of Rs. 1,00,000 and the sale proclamation was affixed in the suit building and only then the plaintiffs next friend came to know about the execution proceedings. He rushed to the Court and obtained certified copies and found that fraud had been perpetrated by the defendant in bringing the suit property for sale. On regular enquiries, it is found that M.R. Radha was declared insolvent in I.P.No. 33 of 1967, dated 15.11.1968 by the High Court, Madras, and the defendant was arrayed as one of the creditors in the petition. The defendant did not file any claim before the Official Assignee, Madras and the Administration was clo